Our office received a number of compelling comments in response to the May 2011 article, “Thoughts on Mediating Custody.” Many of those who commented voiced a concern with the manner in which gender dynamics in both the courts and in mediation might affect the outcome of custody mediation. In this article, we examine the issue of gender in the mediation process, and provide you with tools to remove such gender bias from the calculus of mediation.
Gender permeates the dynamics of our daily personal interactions. The concepts of gender extend beyond the biological differences of being a man or a woman. The terms male and female imply cognitive and behavioral characteristics which define the cultural roles for each. These differing roles have been so solidly integrated into the fabric of our interactions that those who break out of their gendered behavioral patterns are viewed negatively. For example, the emerging concept of the “stay at home Dad” is sometimes viewed with suspicion by society. Therefore, when acting in the role of a neutral facilitator during co-parenting mediation, it is imperative to avoid accepting any stereotypes which harshly define and separate the participants in the process.
Sociological study of gender falls into two basic categories. The first paradigm describes men and women as two separate and unequal entities: the natural woman and the rational man. In this view, women’s social roles are inherently different from those of men. There is a focus on the “soft” natures of women as peacekeeping, cooperative, tender, and caring. Women are resigned to being so called, “soccer moms.” They are expected to be caretakers of children and home, tasks that are presumed to require fewer rational and problem-solving skills. In contrast, men play the role of the classic breadwinner. Men bring home the money, control the finances, and are responsible for long-term planning. Men perform these duties while maintaining a calm and rational sense of self and the world around them.
Feminist study has worked tirelessly to debunk this dichotomy. The feminist paradigm views gender roles as imagined and prescribed. It denies the inherent natures of men as rational and women as natural. Post-modern feminism examines the influence of language, social discourse, and cultural symbols in creating gender bias. Modern study does not rule out the individual and his or her experiences, rather it attempts to transcend the labels that have boxed genders into explicit functions and categories.
We all make judgments based on gender. These judgments are the result of life experiences and interactions within the family and community. Sometimes we may be aware that we have categorized a person based on gender. At other times, our gender biases are manifested in a more subtle fashion. When mediating co-parenting disputes it is difficult to avoid the pitfalls associated with socially prescribed gender roles and the coincident bias. Regardless, mediators are expected to act as unbiased neutrals. Therefore when mediating co-parenting issues, we must make an affirmative effort to avoid gender bias.
Mediators in our office have found several techniques useful in avoiding gender bias while resolving co-parenting disputes. Studies indicate that women falter in situations which involve conflict. Women are encouraged to maintain a modest and selfless persona to facilitate cooperation and pleasantness. This social conditioning and expectation often cause a female to be unable to advocate for her views. Therefore, it is important to engage women actively in the mediation by providing a clearly articulated structure rather than an open-ended process. Creating goals and checkpoints before and during the mediation may help female participants to be certain that their interests have been addressed. At the beginning of each session, mediators might ask the couple to outline a set of goals they would like to achieve in that session. Jotting these down and using them as guideposts for the session gives the couple a means of staying on track. This structure also provides a reference to ensure that each feels negotiation was fair and unbiased.
Like most mediators, we administer a domestic abuse screening tool before beginning the process. This provides us with an early opportunity to become familiar with the participants and their individual goals. After reviewing the initial screening tool, you may decide that it would be beneficial to meet with the parties in caucus. This gives the mediator a chance to assess the individual outside of his or her relationship to the other party. These caucuses allow each participant’s concerns to be heard distinctly. This helps to avoid the possibility that a gender based bias is created between one party and the mediator.
Be careful to use this technique judiciously. Early caucus has the potential to create further distrust between the parties. There is a possibility that one of the parties may believe that early caucus gives the opposing party’s argument an advantage. Let your expertise and your gut guide you. Explain the purpose of your caucus to the parties and ask if the participants would like to continue together rather than meeting individually. Remind the parties to keep notes of concerns that arise so that they may be voiced during caucus or in group session. These simple courtesies avoid accidental bias.
Mediators must also avoid what sociologists would refer to as stereotype threat. Stereotype threat occurs when individuals fulfill negative stereotypes because of the language or behavior of others. In these instances, stereotypes may become self-fulfilling prophecies. A woman may hear the words, “the best interest of the child,” and understand it to mean giving up her life and dedicating it to the care of the home and children. She may deny her own desire to return to school or to build a career. In contrast, a man may hear, “the best interest of the child,” and understand it to mean earning a higher income to provide better financial support for the child. He may deny his desire to participate more fully in the child’s life. In our office, mediators provide the parties with the state’s statutes regarding child custody and the best interests of the child. We often remind the parties that the court may allow older children to voice what is in his or her best interest. Finally, ask each party to consider his or her individual, as well as parental needs. These techniques provide a reality test against overreaching, and an opportunity to avoid under-reaching, due to a perceived need to fulfill gender stereotypes.
Some believe that gender bias can only be removed from the process by co-mediating with both a male a female facilitator. This approach gives each participant a sense that their issues are both heard and understood by an empathetic ear. Occasionally, mediators in our office have employed gender balanced co-mediation where it is requested by the participants. We have found that employing the above-described tools avoids gender bias and is sufficient to resolve co-parenting disputes equitably. On this issue, we would expect the mediator’s expertise and the participant’s needs to drive the approach to unbiased mediation.
Mediation has the potential to create a hospitable environment for participants of both genders. To reach this potential, mediators must be aware of gender bias issues and the possibility for imbalance in the participant’s negotiation. We hope that this article has raised your awareness of the many ways gender bias may creep into co-parenting disputes. Further, we hope that this article has suggested a few of the tools you may need to reach gender-neutral and equitable resolutions.